Discovery: Hospital Loses Privilege from Discovery by Failing to Report Event

February 1, 2012 | Healthcare Risk, Quality, & Safety Guidance

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​​The plaintiff in a wrongful death lawsuit filed in a Rhode Island state court alleged medical negligence and sent a formal discovery request to the defendant hospital, asking whether the care and treatment of the decedent had been the subject of a peer review meeting and, if so, requesting identification of all documents that were submitted for the meeting(s), prepared for such meeting(s), and generated as a result of such meeting(s). In response, the hospital stated that a "root cause" meeting had occurred with regard to the decedent's sustaining a broken hip in the emergency department. It identified 16 documents in its privilege log, among which were 11 records related to a root cause analysis. It grouped various other documents under labels such as "mortality review," "emergency department physician case review," "department of surgery review meeting," and "physician peer review meeting, " claiming that the state's peer-review privilege law protected all of the documents in its privilege log from discovery.

The court scrutinized the hospital's claim of privilege to ensure that the hospital had strictly satisfied the requirements of Rhode Island's peer review privilege statute. That act provides that, in order for a privilege from disclosure to attach to records claimed as privileged, the hospital must first inform the state's Department of Health (DOH) of a "reportable event" and then conduct a peer review process to determine if the incident was...

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